Johan Retief, writing on behalf of the ombud, found the "Shelley Garland" blog to amount to hate speech against white men.

This ruling is based on the written submissions of Dr Christopher McCreanor, Mr Shean King and Mr Ernst Roets, Deputy CEO of AfriForum, and those of the editor-in-chief of the Huffington Post SA, Verashni Pillay.

McCreanor et al are complaining about a blog on the Facebook page of The Huffington Post website of 13 April 2017, headlined Could it be time to deny white men the franchise?

Complaint

As the complaints by the above-mentioned people are materially the same, I am adjudicating them together. Chronologically they were received in this order:

McCreanor complains that the:

website did not verify the identity of the writer before posting a blog inciting direct discrimination against white males in South Africa and outside its borders;

blog:

made unsubstantiated claims about the contribution white males have made to the sad state of affairs in South Africa; and

supported hate towards white males by suggesting that they be disenfranchised.

King complains about the same issues.

He adds that Pillay's:

defence of the contents of the blog made that the official position of Huffington Post (contrary to the Constitution, the SA Code of Ethics and Conduct, as well as Media24's Strategy and Core Values);

subsequent reaction was based on the fact that the source could not be identified, and not on the basis that the content of the blog was highly offensive and factually incorrect; and

apology was inadequate.

He adds that the blog remains on the internet, even though Huffington Post took it down, and therefore it can still be accessed. The fact that electronic publications are in a real sense permanent, "places a very real burden and responsibility on editors, reporters and media houses alike to ensure that their work meets relevant constitutional, ethical and Press Code standards and can withstand objective scrutiny".

AfriForum's main complaint is about Pillay's defence of the blog, but it also relates to the publication thereof.

Roets says the reportage amounted to hate speech, unfair discrimination, sexism and racism, and was in breach of the publication's own policies, the SA Code of Ethics and Conduct, and the Constitution of South Africa.

He points out that AfriForum is a civil rights organisation operating with a particular emphasis on the protection of minority rights. It has slightly more than 190 000 individual members, including tens of thousands, or perhaps even more than a hundred thousand, white men.

Roets argues that, although Pillay stated that she does not necessarily agree or endorse everything in the article, it was quite clear that she agreed with and defended the crux of the article; besides, notwithstanding the apology she never repudiated its content.

Referring also to the second tweet by the editor responsible for blogs, Sipho Hlongwane, in which he stated the blog was removed because it was not possible to verify the blogger's identity, Roets says it is clear that the blog was taken down for that reason, and not as a result of its racist and / or misleading content.

He adds Pillay confirmed during a radio interview on April 16 that the blog had been taken down because of the identity of the author; she never once said the content of the article had anything to do with her decision.

Roets says the reportage amounted to serious misconduct and that, given the fierce international criticism that the debacle had received, the matter did not only strike a severe blow to the credibility of The Huffington Post South Africa, but also to The Huffington Post as an international platform and the credibility of the South African press in general.

He asks for a finding that the publication and its editor apologise to white men and all those who were offended by the article, as well as for a recommendation for her resignation as editor-in-chief.

Relevant texts

The blog

The blog, written by "Shelley Garland" (a pseudonym), started off by saying that the redistribution of the world's wealth was long overdue, and it was not just in South Africa where white males owned a disproportionate amount of wealth.

The blogger argued that some of the biggest blows to the progressive cause in the past year have often been due to the votes of white men. If white men were not allowed to vote, Garland wrote, it was unlikely that:

· Britain would be leaving the European Union;

· Donald Trump would now be the President of the United States; and

· the DA would now be governing four of South Africa's biggest cities.

The blog stated the "progressive cause" would therefore be strengthened if white men were denied the vote. The blogger proposed such a disenfranchisement for a period of 20 to 30 years, which "would go some way to seeing a decline in the influence of reactionary and neo-liberal ideology in the world". This would strike a blow against "toxic white masculinity, one that is long needed", the writer added.

If this happened, the blogger continued, this could see a redistribution of global assets to their rightful owners, adding, "After all, white men have used the imposition of Western legal systems around the world to reinforce modern capitalism. A period of twenty years without white men in the world's parliaments and voting booths will allow legislation to be passed which could see the world's wealth far more equitably shared. The violence of white male wealth and income inequality will be a thing of the past."

The blogger stated that in South Africa 90% of the country's land, and 97% of the Johannesburg Stock Exchange was owned by whites (mainly male). Citing the United States and Namibia, the writer concluded that this was a world-wide pattern.

The author proposed that voting rights should be taken away through the expropriation of assets, which should be equitably distributed to those who need them. "This will not only make the world a more equitable place, but will also go some way to paying the debt that white males owe the world. Over the past 500 years colonialism, slavery, and various aggressive wars and genocides, have been due to the actions of white men. Redistributing some of their assets will go some way to paying the historical debt that they owe society. It is time to wrestle control of the world back from white males, and the first step will be a temporary restriction of the franchise to them."

Withholding the franchise from white males, along with the passing of legislation in this period to redistribute some of their assets, would also, to a degree, act as reparations for slavery, colonialism and apartheid, which the world was crying out for to be paid, the blogger added.

Tweets

Hlongwane, as blogs editor, tweeted an image as a result of the article and added the following statement: "Check our traffic every time we share that white men franchise blogpost on social media. The corrections email inbox is a nightmare rn." He then added two emoji faces crying with laughter.

He later tweeted, "It was not possible to verify the ID of the blogger, so we've taken the post down."

Response by Pillay

The day after publication, Pillay published a response to criticism as a result of the blog, headlined, This blog on white men is going viral. Here's our response.

In this response, Pillay identified Garland as "an activist and feminist currently completing an MA degree in philosophy".

The editor listed several comments, adding that she was excluding the overtly racist, sexist and violent comments.

She continued:

"Garland's underlying analysis about the uneven distribution of wealth and power in the world is pretty standard for feminist theory. It has been espoused in many different ways by feminist writers and theorists for decades now.

"In that sense, there was nothing in the article that should have shocked or surprised anybody (or so we thought.) It would appear that perhaps much of the outcry derives from a very poor reading of the article -- or perhaps none at all.

"Dismantling the patriarchal systems that have brought us to where we are today, a world where power is wielded to dangerous and destructive ends by men, and in particular white men, necessarily means a loss of power to those who hold it. A loss of oppressive power. Those who have held undue power granted to them by patriarchy must lose it for us to be truly equal. This seems blindingly obvious to us.

"This doesn't necessarily mean we agree or endorse everything in Garland's blog. The point of our Voices section is to invite a wide array of voices and views. We hope, as reads continue to rack up on this blog, that those who are tempted to fire off an angry email to us would first engage with the underlying analysis in Garland's blog."

Pillay responds for a second time

After the blog has been removed, Pillay published the following article:

"We have done this because the blog submission from an individual who called herself Shelley Garland, who claimed to be an MA student at UCT, cannot be traced and appears not to exist.

"We have immediately bolstered and strengthened our blogging procedures that, until now, have operated on the basis of open communication and good faith. From now on, bloggers will have to verify themselves.

"We will hold discussions on putting in place even better quality controls.

"In addition, we note the commentary on the content of the blog post and will submit it to the South African Press Ombudsman ... for his analysis of the opinion we carried.

"Huffington Post SA stands aligned to the Constitutional values of South Africa, particularly the Preamble of our Constitution which states that: "We the people of South Africa believe that South Africa belongs to all who live in it, united in our diversity."

"We further understand that universal enfranchisement followed a long struggle and we fully support this.

"In addition, Huffington Post South Africa is a signatory to and supporter of the South Africa Press Code. We support free expression as limited by the following value as set out in that code."

Request to this office

In addition, Pillay requested this office for advice on whether the publication of the blog was in contravention of the SA Code of Ethics and Conduct.

Formal response to the complaints

In her formal response to the complaints, the editor-in-chief apologises for the publication of the blog, stating that it was retracted as the publication could not verify the blogger's identity. She submits, "Later it turned out to be a planned and malicious attack on our systems."

Pillay adds that Huffington Post retracted the blog also because its content "sailed too close to what is prohibited in the press code and our constitution. We believe in universal enfranchisement".

The editor says this incident has led the publication to strengthen its processes, and promises to act on any direction that this office may give.

The complainants reply

McCreanor says Pillay is backtracking and blaming the author of the blog, "but what is concerning is that she has allowed an extremely sexist and racist post to be published in the first place". He says he does not accept the editor's apology as she has deliberately ignored the Code and the Constitution, and claims that the blog spoke of Pillay's own view on the matter.

He submits, "If the piece in question targeted any other minority group as opposed to white males, it would 'be the end' of the online publication." He argues that Pillay, in her response to the complaint, minimized the issue by making it out as a "systems error" or "system issues", adding that she should take personal responsibility for this disaster.

In a second response, McCreanor adds that Pillay omitted to acknowledge that the same article had been submitted to various other publications, all of which refused to publish it because allegations contained in it were unsubstantiated, and its publication was not in South Africa's interest. He says the blog amounted to hate speech.

He also points out that this was not Pillay's first major mistake (the details are not relevant to this complaint).

McCreanor argues, "The discussion was disenfranchisement. In the South African context we know why we will not do it again and why such suggestions could be, and rightfully so, seen as hate-speech." He wonders if Pillay made this mistake because she wanted to buy into the hoax.

"The apology," he says, "sounded more like a self-congratulatory back slapping... [t]he fact that we allow ourselves to intellectualise hate-speech if it eminates from one demographic, but recognize it as such if it comes from another, is a serious and valid case for concern and should be further investigated."

In conclusion, McCreanor says Pillay has damaged the honour of honest journalists in South Africa and internationally, and calls for her resignation as editor.

King replies that Pillay is disingenuous by not mentioning and apologizing for her "subsequent contradictory defence of the blog, [but] only [for] the publication of the blog itself".

He asks for a full, unconditional public apology, "taking full responsibility for this debacle and a full public retraction of all subsequent publicized opinion relating to the blog by [Pillay]."

Roets says, "I have read Ms. Pillay's response, as well as her most recent article in which she reiterates that she endorses the content of the original article, except for the part which calls for the voting rights of men to be scrapped. Pillay's endorsement of the views expressed in that article (not exclusively the view that white men shouldn't be allowed to vote) is the crux of our complaint.

"Our complaint has thus not been resolved by Pillay's statement."

Analysis

Introductory remarks

Some online publications allow users, including bloggers, to post articles directly to their sites. In this instance, though, "Garland" submitted the text to The Huffington Post for consideration, approval and publication.

Because it was posted online by the editorial team after a decision to publish the material, and not by the user, Chapter 1 of the SA Code of Ethics and Conduct applies to this complaint, and not Chapter 2.

The following issues need to be addressed:

The content of the blog;

The publication of the text without verifying the identity of the writer; and

Pillay's public responses (which represent the official view of The Huffington Post).

Content of the blog

The Bill of Rights, which is quoted in the Preamble to the SA Code of Ethics and Conduct, makes provision for freedom of expression. That is a given.

The same Bill of Rights, though, also outlines borders to this freedom. As always, freedom cannot be unbridled and without limits, and should be exercised responsibly.

Indeed, that is what the Code of Ethics and Conduct is all about – to ensure that the freedom that this country has finally obtained, is protected by not abusing it. Each and every section of the Code has this aim as its main purpose.

This is also the main reason for the existence of the Press Council, and for the operations of its office.

My task, therefore, is to ascertain whether the content of the blog crossed the borders (set by the media industry itself), or not. On the other hand, while this office should ensure that the media stay within these borders, it should also be careful not to unnecessarily curb freedom of expression.

Section 5 (headlined, Discrimination and Hate Speech) and 7 (headlined, Protected Comment) of the Code now come under the microscope.

The issues at stake in those sections are whether the blog:

· amounted to:

o discrimination;

o hate speech; and

· was protected as comment.

Discrimination

Section 5.1 deals with discrimination. It reads:

"Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people's race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, nor shall it refer to people's status in a prejudicial or pejorative context."

The question is whether the blog contained "discriminatory and denigratory" references to white males.

Let me be short and sweet: If disenfranchisement of anybody (whether white males or black females, for that matter) is not discriminatory, the meaning of discrimination should be redefined. Moreover, the reasons given for such a malicious suggestion certainly were denigratory. I do not believe that this statement needs any further justification.

I do not believe for one moment that such discriminatory and denigratory opinions can be described as being in the public interest – especially given this country's history of its struggle for liberation. To disenfranchise a section of the population once again would indeed represent a huge step backwards – one that may have some serious unforeseen consequences.

Hate speech

Section 5.2 reads:

"The media have the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."

There are many definitions of hate speech, and it is a lively debate which reaches even Parliament and our courts.

As far as this office is concerned, Section 5.2 should determine this office's considerations – but it should be read in conjunction with Section 5.1 as well.

This means that hate speech can be described:

· first and foremost, as material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race and gender (etc.), and that constitutes incitement to cause harm (Section 5.2); and

I find the contribution of Mercy Muendo of the Mount Kenya University (theconversation.com) in this regard quite helpful (in which she combines the contents of Sections 5.1 and 5.2 of our Code).

I have amended her criteria for identifying hate speech slightly to boil them down to the following questions:

Is the speech likely to be inflammatory, discriminatory, hostile, and is it targeting a particular group?

How influential is the speaker?

Is the audience likely to react violently?

Have similar statements led to violence?

As the blog was indeed inflammatory, discriminatory, and targeting a specific group of people, I believe it can be described as hate speech on that basis (Section 5.1) alone.

I accept that the text itself did not directly propagate violence – but if the actions it advocates were ever put into practice, they might well lead to just that.

I therefore have little hesitation in labelling the content of the blog as hate speech, and therefore in breach of the Code.

Protected comment

Section 7.2 of the Code is headlined, Protected Comment. This section states:

"Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it:

7.2.1. expresses an honestly-held opinion;

7.2.2. is without malice;

7.2.3. is on a matter of public interest;

7.2.4. has taken fair account of all material facts that are substantially true; and

7.2.5. is presented in such manner that it appears clearly to be comment."

These considerations are supported by a judgment by Judge Edwin Cameron of the Constitutional Court in the matter of McBride vs. The Citizen, in which he said, "Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true." (April 2011)

There is little doubt that the blog was extreme, unjust, exaggerated and prejudiced. But these adjectives in themselves, as rightly pointed out by the Code as well as by the Constitutional Court, should not curb the robustness of the debate. Freedom of speech allows citizens those "luxuries".

The problem with the blog is not that the opinions in it were extreme (etc.), but rather that it was not in the public interest (rather against it, as argued above), that it can be described as malicious – and also that it has not taken fair account of all material facts that are substantially true (for example, the blog is demonstrably wrong with its statistics about ownership of the JSE).

"Garland's" freedom to express his opinions does not extend to the above, and the same goes for The Huffington Post should. It should have refused to publish the blog – that is, if it wanted to adhere to the Code of Ethics and Conduct. I'll return to this point shortly.

Publishing without verifying 'Garland's' identity

The first thing catching the eye is Pillay's contradictory statements on this issue.

Her first reaction came a day after publication, in which she stated (as fact) that Garland was "an activist and feminist currently completing an MA degree in philosophy". She left no doubt about this person's identity, or any hint that The Huffington Post had not identified this writer.

Later though, in her explanation of why the blog was removed, she wrote, "We have done this because the blog submission from an individual who called herself Shelley Garland, who claimed to be an MA student at UCT, cannot be traced and appears not to exist."

Secondly, because The Huffington Post and not the writer posted the blog, it was duty-bound to establish Garland's identity. The same goes, for example, for the author of a letter to the editor or an unsolicited article – as a rule, publications do not publish such texts if they are accompanied merely by a pseudonym, without the identity of the writer.

Pillay's public responses (representing the official view of The Huffington Post)

An editor should take responsibility for everything carried in that specific publication. This does not mean that an editor should always agree with a text, of course, but the editor must ensure that no text breaches the Code.

Having decided that the blog was discriminatory and denigratory, that it did not serve the public interest (rather the opposite), that it constituted hate speech, and that it was factually wrong in some instances, it follows that the editor should never have allowed the text to be published in the first place, if she wanted to be true to the Code.

But the situation gets worse. I have cited Pillay's first response above, and I am not going to repeat it. But do consider the following extracts from it:

"Garland's underlying analysis about the uneven distribution of wealth and power in the world is pretty standard for feminist theory..."

"In that sense, there was nothing in the article that should have shocked or surprised anybody..."

"Dismantling the patriarchal systems that have brought us to where we are today, a world where power is wielded to dangerous and destructive ends by men, and in particular white men, necessarily means a loss of power to those who hold it. A loss of oppressive power. Those who have held undue power granted to them by patriarchy must lose it for us to be truly equal. This seems blindingly obvious to us..."; and

"We hope ... that those who are tempted to fire off an angry email to us would first engage with the underlying analysis in Garland's blog."

Pillay must not blame the reader for thinking that she in fact did support the gist of Garland's argument.

Still, there is more. Not only did Pillay create the impression that she (and with her, The Huffington Post in particular and Media24 in general) has no serious problems with the content of the blog (to put it mildly), but she also strengthened this impression by not justifying the decision to remove the text by denouncing its content – instead, the main reason for removing the blog revolved around "Garland's" "identity".

These were her introductory sentences: "We have done this because the blog submission from an individual who called herself Shelley Garland, who claimed to be an MA student at UCT, cannot be traced and appears not to exist. We have immediately bolstered and strengthened our blogging procedures that, until now, have operated on the basis of open communication and good faith. From now on, bloggers will have to verify themselves. We will hold discussions on putting in place even better quality controls."

In the meantime, the main problem with the blog was "internal", not "external" – it was not a fault in the system, as Pillay alleges (as a decision was made to publish the blog – it did not just slip in by itself); it was not an accident, it was a mistake made by the editor and her editorial team.

I do note with appreciation, though, that the text ended such: "Huffington Post SA stands aligned to the Constitutional values of South Africa, particularly the Preamble of our Constitution which states that: 'We the people of South Africa believe that South Africa belongs to all who live in it, united in our diversity'. We further understand that universal enfranchisement followed a long struggle and we fully support this. In addition, Huffington Post South Africa is a signatory to and supporter of the South Africa Press Code. We support free expression as limited by the following value as set out in that code."

Let me be painfully clear about this: If it is Pillay's belief that the gist of Garland's article is correct, she is free to believe that and to pursue her view – but then she must know that this is not possible within the confines of the Code.

General comment

I have been asked to find that Pillay has breached the SA Constitution as well as Media24's Strategy and Core Values and those of The Huffington Post itself; I was also requested to recommend Pillay's resignation.

Those matters are not for me to decide; I am only mandated to adjudicate a complaint against the publication on the basis of the Code.

Finding

Content of the blog

Discrimination and Hate Speech

The Huffington Post published text that was discriminatory and denigratory, and which amounted to hate speech. This was in breach of the following sections of the SA Code of Ethics and Conduct:

· 5.1: "Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people's race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, nor shall it refer to people's status in a prejudicial or pejorative context"; and

· 5.2: "The media have the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."

Protected comment

Comment by the blogger was not protected in that it breached the following parts of Section 7 of the Code: "Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it ... 7.2.2. is without malice, 7.2.3. is on a matter of public interest; [and] 7.2.4. has taken fair account of all material facts that are substantially true".

Publishing without verifying 'Garland's' identity

The Preamble to the Code states that, as journalists, "we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public". By publishing this blog without having identified the author, The Huffington Post was not true to this commitment, and contributed to the erosion of public trust in the media.

Pillay's public responses (representing the official view of The Huffington Post)

The publication of a text that was discriminatory and denigratory to white males, which did not serve the public interest, which constituted hate speech, and which was factually wrong in some aspects was, in addition to breaching Sections 5 and 7 of the Code, also impairing the dignity and reputation of many people in that group. It therefore also breached Section 3.3 of the Code which states, "The media shall exercise care and consideration in matters involving dignity and reputation..."

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.